*1 America, UNITED STATES Appellee,
Plaintiff —
v. ALVARADO-RIVERA,
Martha
also known as Rosa Ontiveros
Aranda, Appellant. Defendant — America,
United States of Appellee,
Plaintiff — Moya-Vega,
Gilberto also known as
Jorge Salinas, Defendant—
Appellant. 03-2308,
Nos. 03-2374.
United States Court of Appeals,
Eighth Circuit.
Submitted: March 2005.
Filed: June
Stephen Grigsby, V. argued, Minne- MN, apolis, appellant Alvarado-Rivera. *2 in cham- MN, they would arrive Paul, informant argued, St. Applebaum, Paul vehicle, Beto would and pagne colored Moya-Vega. appellant for hidden in his ounces of cocaine have three Dixon, Attorney, Asst. U.S. T. Joseph at the After arrived crotch. MN, appellee. Minneapolis, argued, deputies ar- place predicted, as meeting the cocaine Moya-Vega and found LOKEN, Judge, rested Chief Before WOLLMAN, BRIGHT, HEANEY, pants. hidden in his ARNOLD, SHEPPARD MORRIS nationals with are Mexican Appellants MELLOY, BYE, RILEY, MURPHY, skills, and Steven Nusb- English limited GRUENDER, COLLOTON, and SMITH, aum, agent from the Spanish speaking BENTON, Judges. Circuit Task Administration Drug Enforcement Force, question to the scene was called MURPHY, Judge. Circuit told them. Nusbaum and Gilberto Martha in Blaine and in a trailer couple lived conspiracy pled guilty Moya-Vega each but his wife know the address he did not intent possess with and to distribute Alvarado- During questioning, would. grams of substance over distribute in a couple lived Rivera said also in violation methamphetamine, containing the address. provided in Blaine and trailer 841(b)(1)(A) Af- and 846. §§ 21of U.S.C. being impounded, their car was Because rejecting their re- considering ter Alvarado-Riv- offered to drive the officers statutory for a sentence below quests con- agreed and trailer. She era to the of the use through mandatory minimum trailer, with a search sented to in 18 U.S.C. provision would understanding that officers Al- sentenced 3553(f), the court1 ille- they nothing if found there leave her Moya- months to 120 varado-Rivera offi- other Agent Nusbaum two gal. and a They appealed Vega to 135 months. Deputy trailer while her to the cers took reversed, with hearing panel jail to retrieve to the went Peter Eastman Alvarado- States United dissenting. who trans- from the officer keys her car Rivera, Moya-Vega. ported rehearing en petition government’s opinion panel and the granted banc was at the Deputy After Eastman arrived judgments affirm the We vacated. now keys, she Alvarado-Rivera’s trailer with court. the district key key on her with a opened the door nothing inside the almost ring. There was
I. beds, mattresses, trailer; no there were refrigerator towels, paper. or toilet Ram- arranged by buy A controlled though Alvarado- even empty was almost August office on County sey Sheriffs during Agent Nusbaum had told Rivera of Alvarado-Rivera to the arrest 2002 led gone gro- that she ride to Blaine ad- An informant had Moya-Vega. day. Nusb- in the cery earlier shopping as a man he knew deputies vised and her story that she challenged her aum prior pur- made Beto, he had from whom trailer, she insist- lived in the husband cocaine, be driven would chases According to ed did. his wife. buy by scene Frank, sota. United Donovan W. The Honorable Minne- Judge District States District preliminary cocaine, A search phetamine, grams officers 43.5 and 85.2 grams marijuana. found no in the but thereaf- Gilberto said he had ter a certified narcotics canine alerted moved these parents’ to a his apartment at refrigerator kitchen cabinet between the the direction of his brother *3 they and Gustavo after Deputy sink. Eastman then led the failed to return home. dog through the whole and she II. alerted again to the same location. The cabinet, a in opened Appellants officers drawer conspira- were indicted for cy saw it was and removed it. to empty, possess Hidden distribute and with intent they twenty grams behind the drawer found to distribute 500 sev- or more of a pounds en substance methamphetamine, containing methamphetamine, later de- having possession scribed two counts of doughy as corn with intent distinctive cocaine, distribute sistency shape. and disc and three Alvarado-Rivera counts possession placed was with intent given under arrest and distribute her methamphetamine. rights.1 They pled guilty Miranda She claimed she knew conspiracy count under 21 nothing about the U.S.C. drugs, but continued to 841(b)(1)(A) §§ and admitting each insist that she lived in the trailer. plea their agreements they were day investigating The next officers found accountable for approximately 12.94 kilo- receipt a rent in the material taken from grams of methamphetamine. As for co- Alvardo-Rivera. The receipt was for an caine, agreed Alvarado-Rivera that she Paul, apartment in West St. and the man- was accountable for some grams 126.7 ager there confirmed that and Moya-Vega took responsibility for occupied by was and approximately grams. 43.5 Moya-Vega, whom he knew as Rosa On- tiveros Aranda and Jorge Salinas. Offi- Appellants mandatory faced a mini cers executed a search warrant for the mum sentence of 120 months because of apartment and found mail and documents the amount involved their of linked to both the real of appellants names 841(b)(1)(A). § fense. See 21 U.S.C. and to those known to manager. They government Since the did not move for a also approximately discovered pound one substantial departure, assistance their methamphetamine dishwasher; in the hope for a mandatory sentence below the these had the same distinctive con- minimum qualify was to safety sistency and shape as those found in the 3553(f). valve provided § in 18 U.S.C. Un trailer. they addition seized approxi- der that provision knowledgeable “less and $3,875 mately cash, small amounts of culpable less may offenders” be able to marijuana, scale, cocaine digital and two application avoid of the “often harsh statu receipts for wire transfers to Mexico of tory minimum they give sentences” if full $1,000 $5,000, suspected drug and truthful information about their of notes. The appeared *4 ring “no was could not because there truthfully has the defendant hearing, proffer. valve He truth” to her all informa- to the Government provided protect it’s to other found that “whether con- has the defendant tion and evidence life or out of for her her people or fear that were or offenses cerning the offense minimizing family’s, is] [Alvarado-Rivera or of of conduct same course part of the her, “I don’t believe that role” and told her plan. a common scheme truth.” substantially told the He you’ve 3553(f)(5). 18 U.S.C. credible, not includ- found her satisfy the fifth attempt In to an only that she had used ing her comments requirement, bracelet, to that digital the scale proffer in participated Moya-Vega each came money about from only the she knew Alvara- government. with the interviews sales, only she knew food that her that she government told the doRivera expressed The court drug customer. an- trailer to had sublet the husband justice integrity of the its concern had kept and she July person other said, that “I don’t believe it’s system and something there. She to fix keya in order I evaluate call on how even a close in the were knowing there denied findings, summing up his record.” lied about that she had She said trailer. Alvarado-Rivera, “I judge told knew trailer she living in the because you’re eligible found that have Paul St. drugs in the West there were prof- I found safety valve because had not she but she claimed apartment, truthful substantially based was not fer in the methamphetamine about the known in front I have all the record that upon she never dishwasher because apartment inferences.” He circumstantial me and the that it. She admitted used statutory minimum her to the sentenced in the had been storage in the locker found 120 months.2 said that but she apartment, of her closet interviews. two that her drugs and had never sold she drug customer that He maintained his in- was the only drug customer
husband’s that all cash informant and was the only money claimed She that formant. came from sales seized from selling from gained was she knew about that his wife had Moya-Vega said only to him. that she had prepared food she resulting acceptance responsibility. had a Moya-Vega, 2. Unlike Alvardo-Rivera months, but range range 57-71 it sentencing guideline guideline below the statuto- was stipulated base ry mandatory gone Her if she had minimum. months would have 46-57 drug quantity based offense level of under the a 2 reduction qualified for level admitted, reduced capped at 30 and was she safety valve. mitigating and 3 levels for role levels for driven him to the last three transactions but that did not relate drugs. He he had traveled bus the other said that recipients of the wire trans- Initially times. he said he had sold fers were her cousins and that approximately cocaine to the informant fif- amounts recorded in the notes were times, usually teen him half sold an dollars, pesos, not though receipts even time, gained ounce at a and that he had other money transfers showed sent from per govern- ounce. When the $50 $100 dollars and converted pointed ment out that those transactions pesos Mexico. The could not explain money found in the pointed out that even if Moya-Vega were apartment, he story revised his and said telling the truth about the nature of the that he had sold cocaine to the informant currencies, 99,000 pesos roughly would be per two or three times week for sixth $11,000, equivalent to significant amount months. He admitted that he used the money to transmit in two months. digital scale to measure cocaine. Moya-Vega responded that he had been saving money for more than year
Moya-Vega admitted that the metham- drug dealing his employ- and from phetamine found the dishwasher and ment as a construction worker. storage his, locker was but he denied *5 knowledge of the methamphetamine found After considering the evidence and in the explanation trailer. He had no for admissions, Moya-Vega’s the district judge why the methamphetamine from apart- said, “None of this makes sense to ment had the same appearance distinctive me.” found that Moya-Vega that as found and he claimed had not been forthcoming about his in- that he had never sold methamphetamine. stated, volvement say and “I’d one out of a He said that his cocaine supplier pro- had generous thousand is that I’m wrong.” He vided him with the methamphetamine mentioned that participants lower level found in the but that he had not drug rings said, were exploited and “I yet attempted to sell it. In his first inter- believe that whether it’s out of fear for Moya-Vega view said that he knew yourself your family protect or to other supplier his of cocaine and methamphet- people, the coming information isn’t for- “Coyote.” amine as He did not know ward.” The court apply declined to lived, Coyote just where but would meet valve, safety Moya-Vega sentenced him in the street or at McDonald’s. In his above the mandatory minimum to 135 second Moya-Vega interview said that his months, the low end of his stipulated supplier was not Coyote, called but rather (result- guideline range of 135-168 months Carlos or Andres. ing from stipulated base offense level
Moya-Vega said that
suspected drug
of 36 with a 3 level reduction
accep-
for
by
notes had been made
Alvarado-Rivera
tance of responsibility).3
3,
January
Moya-Vega
3. On
2005
rights
moved for
ment
were not violated. See United
supplemental briefing
Blakely
Booker,-U.S.-,-,
under
v. Wash-
States v.
125 S.Ct.
296,
2531,
738,
ington,
756,
542 U.S.
(2005).
124 S.Ct.
159
Although
947 (8th Surratt, 172 F.3d ap- v. States Cir.1999). pro- government arguing that the pealed, to contradict no direct evidence duced Defendants have the burden proffers their said in they had what affirmatively they have satisfied show that were sufficient their statements valve, in safety requirement each A treatment. safety them to valve entitle information and cluding truthful whether reversed, majority panel panel hearing govern have been given evidence safety of a improbability holding Santana, States ment. See United basis is not a sufficient proffer valve (8th F.3d falsity, proof deny the benefit without “a designed to benefit provision was Alvarado-Rivera, A dis- F.3d at 870. defendants,” H.R.Rep. No. narrow class of had objected that the court senting judge (1994), they meet the who show 103-460 than rather a de novo review conducted statutory requirements. court findings of the district reviewing the the burden clear error consistently our have Although cases shifted to the proof improperly been to be on the proof held the burden The United at 872. Id. government. defendant, v. Alar e.g., see banc, rehearing en petitioned States con-Garcia, 719, 721 Cir. 327 F.3d panel granted, and petition was States, 2003); Wright v. United vacated. opinion 134(8th Cir.1997), contend has the burden
III. if it evidence come forward with additional inadequate. a defendant’s finds creating the The statute *6 for this only authority they propo cite court The it is the district provides that valve F.3d Kang, v. 143 is United States sentencing wheth sition is to determine at which (8th Cir.1998). case in Kang was a the benefit have 379 requirements for the er guilty to pled had the defendant met, a defendant which including whether been the intent to cocaine with possessing 18 base information. furnished truthful has At sentenc 3553(f). distribute and distribution. district court’s safe U.S.C. more than attributed the district court only ing if findings can be overturned ty valve him, that he holding of crack to grams 50 they clearly are erroneous. Cir.1996). in (8th plea amount his agreed to that Romo, had 84, 86 81 F.3d v. The two counts Id. at 381. sup agreement. if record required is Affirmance a total of 6.84 pled only of involved findings, regardless which the court’s ports however, stipula no we found grams, and States See United party is favored. which (8th Id. at 381-82. larger amount. Tournier, tion to the Cir. 171 F.3d v. and remanded 1999). therefore reversed “agree whether we We The test is not an hearing quantity, on is evidentiary an disput of findings court’s the district with would bear on fact,” supports sue which the record but whether ed Be at 382-83. proof. of Id. no less the burden standard is Id. at 648. The them. drug the record on the conflict in cause of finding concerns when the deferential had found the O’Dell, court quantity, the district credibility. States See United (8th eligible for Cir.2000); defendant United Killgo, 397 States v. United unreasonable. sentence absent Book- imposed a more lenient Cf. The mo- error,” 630 n. "prejudicial plain error” F.3d er and no briefing supplemental is denied. tion for Nor was his sentence appears. Id. at 553. veracity and the open amphetamine defendant’s was left in hidden the trailer remand, development for farther but which key. Alvarado-Rivera carried a She we did not shift the valve burden to also knowledge denied of the methamphet- government. Kang Id. at 383. is amine hidden in the in dishwasher inapposite here where Alvarado-Rivera apartment, even though she claimed to Moya-Vega stipulated drug significant make a money amount of selling quantity they respon- for which were held food, homemade and said she had sible and the district court made detailed digital used the scale to a bracelet. findings and sound about the truthfulness plausible No source was by ap- identified proffers. of their pellants to explain money that was wired to Mexico and recorded in the notes findings of the district court found in apartment. satisfy did not their burden Details in the given by ap- supported by are the record. Alvarado- pellants changed investigation as the Moya-Vega pro- Rivera and both made limited gressed during course of their implicat admissions the face of evidence proffers. ing major Alvarado-Rivera insisted that drug activity. Very them she and lived an large amounts of were found in uninhabit- ed trailer until the they trailer to officers obtained evi- which had unrestricted ac (27 dence of their other In pounds methamphetamine), cess of residence. his (1 proffer Moya-Vega adjusted history his apartment pound methamphet their of sales to the informant try to fit doughy amine the same unusual consis amount of tency money he claimed had shape and disc as that in resulted from those plus transactions. He marijuana), gave cocaine and also varying names for storage supplier locker his to which their son moved dis- (281.5 claimed knowledge any contact grams informa- tion Appellants for him. methamphetamine, grams cocaine, provide 43.5 did not district court grams marijuana). addition, and 82.5 basis to believe their $3,875 latest there was cash in stories were more than apartment, their reliable their $6,000 discredited receipts or withdrawn wired to claims. Mexi co, Both *7 given were opportunities and there is indicating evidence for addi- interviews; tional they $99,000 recently had wired Alvarado-Rivera another declined and period Moya-Vega over a short took of time little advan- (Moya-Vega tage of his although himself second spoke conceded that the at his equivalent of $11,000 sentencing hearing. period). was wired in that evidence,
Despite this both claimed that In making its assessment of the truth- only customer, had drug fulness of a safety proffer, valve the dis- happened informant, who to be the trict court is entitled to draw reasonable that he sold Moya-Vega’s cocaine. inferences from the evidence. See United explanation large amount (8th of meth- Weekly, 576, States v. 118 F.3d 581 amphetamine Cir.1997). in the apartment Here, was that the pro- his supplier, really know, whom he did not duced much evidence which the court could had offered him an opportunity to sell it. consider. This by ap- included admissions That so much methamphetamine pellants would be in plea their agreements, state- fronted to a new dealer is not credible. they ments made to law enforcement Appellants both any denied knowledge agents of arranged buy after the was inter- pounds the 27 of similarly cepted, distinctive meth- a variety of evidence from the
949 Credibility Judg- Safety and The Valve apartment, the the of searches ments turned The searches storage locker. the as methamphetamine of amount up large a discretionary. It safety valve is not The thousands marijuana, cocaine and
well as facts, if certain upon is conditioned scale, and wire cash, digital a of dollars met, safety are those factual conditions money of significant amounts transfers mandatory. The sentenc- valve award is no The district court needed to Mexico. deny the has no discretion to ing judge in order to evaluate new evidence 3553(f) (“Notwith- award. 18 U.S.C. legal The proffers. truthfulness ... standing any provision other law supports whether record simply test is pursuant impose court shall sentence Tournier, e.g., findings, see safety its valve ... if the court sentencing] guidelines [the certainly does here. and it at facts].”) added). F.3d (emphasis finds [certain award man- Because the valve is clearly err court did The district that condition an datory, the factual issues had not it found when just as other award must be resolved about all information truthfully supplied sentencing issue at must necessary factual had not satis- and therefore their offenses is, by preponderance be resolved: fulfilled to show had fied their burden evidence, by a fact-finder judged as obtaining statutory conditions for all See United has the evidence. who seen thoroughly re- After safety valve relief. (8th Petersen, States v. record, we conclude viewing the course, Cir.2002). are, of findings Such findings the dis- supports evidence error. United States reviewed clear are therefore judgments The trict court. Hart, F.3d affirmed. down to one fact issue here comes The BRIGHT, credibility of Judge, credibility- with Alvarado- Circuit whom —-the joins, dissenting. HEANEY, Judge, Rivera’s Circuit credibility Moya-Vega’s proffer, and was sentenced Martha Ordinarily, judge’s a trial statements. rather than about years prison, to ten virtually un- are credibility determinations sentencing judge, years, because four ordinarily But appeal. reviewable Alvarado- summary of looking a written at testimony question. seen judge has unrecorded, state- untranscribed Rivera’s case, judge determined In this hear, ment, judge did not see which he neither saw credibility of statements The ma- improbable. statement found the have a judge did not even nor heard. affirms, judge’s hunch saying the
jority nothing transcript read. counts record looking impoverished this at assessing *8 he was more of the evidence.” as “substantial prosecutor, than a written letter effectively turns majority position The proffers. summarizing discretionary award. into a safety valve on determination based credibility A credi- by allowing greatly flawed It does so summary of a state- a than nothing more process that violate due bility judgments fundamentally from the tra- departs ment I dissent. requirements. credibility judgment. aof ditional idea Raddatz, 447 See, States v. e.g., now United majority opinion rely panel I on the 672-84, 100 S.Ct. opinion here. U.S. augment I that vacated.4 Alvarado-Rivera, 4. (1980) (discussed below).
L.Ed.2d 424
selling
pawnbroker
The
before
it to a
or at a
credibility judgment we review here raises
flea market. And that why
seeming
is
problems.
two
improbability
judge,
isolated from
credibility,
all other indicia of
is a weak
Reliability
Problem
Deference
and unreliable basis for judgment.
credibility judgment
This
is not entitled
Even when an
improbable
assertion is
deferring
to deference. The reasons for
to
the defendant’s world as well as the
judgments
the trial judge’s
credibility
judge’s, we know that truth is sometimes
apply
do not
here. We have the same cold
stranger than
credibility
fiction. A
judg-
judge
judge
record the trial
had. The trial
solely
ment based
seeming proba-
did not see the nuances of statement and
bility of a statement —without the other
demeanor that
full credibility
inform a
credibility
indicia of
available when one
judgment any more than we have seen
sees and hears the statement made—is
them.
incapable
distinguishing
between a
Additionally, the trial judge’s distance
strange truth and a strange fiction.
from the
proffers
creates the
judge’s
The trial
greatly
risk of
assessment of Alvara-
unjustifiably
—and
—in-
proffer
do-Rivera’s
creasing
perils
the influence
illustrates the
prosecutor’s
attempting
judge
credibility
to
credibility.
assessment of the defendant’s
of a
statement one neither saw nor heard'—
Finally,
judge’s
where the trial
credibili-
only by
summary
informed
of the state-
ty judgment
simply
is based
on a feeling
ment, personal hunches, and a general
proffer
defendant’s
relayed
—as
sense of what
likely.
seems
The judge
summary
improbable
mere
too
to be
—is
began his brief discussion of Alvarado-
true,
judge’s judgment
ques-
the trial
is of
Rivera’s proffer by saying, “Everything
reliability. Judges
greatly
tionable
live
re-
that I see tells me that for reasons either
moved from the worlds of most of the
you’re scared of what’s going
happen
to
pass through
defendants who
their court-
your family
you’re
yourself,
scared for
I
rooms.
banality
What is mere
in a de-
don’t
you’ve
believe that
substantially told
fendant’s
may
world
seem bizarre and un-
the truth.” There is no evidence in the
worthy of
judge.
belief to a
The trial
support
record to
judge’s
belief that
(and
here,
judge
instance,
at least one
Alvarado-Rivera was scared and was lying
court)
member of this
found it strange protect
someone.
simple
This was
con-
prosecutor
told the
jecture.
she had
used
weight
scale in her
a bracelet. There
judge
is
went on
list—without dis-
why
no reason
judge
the trial
should have
cussing them —several elements of Alvara-
been familiar with
practice
of weighing
do-Rivera’s
statement
jewelry to assess the value of the
thought
metal
ring
“no
of truth.”5 None of
judge's
5. The whole of the
Apart
going
discussion of the
apart
to the trailer and
substance of
said,
Alvarado-Rivera’s
aswas
prosecutor]
from what [the
whether
follows:
scale,
using
wearing
it’s
a bracelet
anor
certain, well,
being absolutely
informant
ring
There’s no
I'll
Everything
of truth to this.
*9
you exactly
tell
going
go,
that I
how the deal is
see tells me that for
to
reasons either
car,
you’re
going
going
driving
scared
it’s
to be his
happen
of what's
to
wife
the
to
your family
you're
apart
yourself,
or
scared for
from what the
I
husband has said or
said,
that, well,
you've
don’t
substantially
believe that
only
told
not
the idea
I
know of
the truth. None
person
of this makes sense to me.
one
drugs
that we’ve ever sold
to
dence,
was
scared
Alvarado-Rivera
surprising
particularly
are
these elements
someone.
protecting
and was
Alvara-
with
or inconsistent
improbable
minimal role
of her
description
do-Rivera’s
matter,
credibility judg-
a
general
As a
(1) She
drug
husband’s
business:
in her
more than
nothing
someone
ment based
drugs at
of the
about some
knew
said she
one neither
summary of a statement
else’s
the
about
did
know
but
not
apartment
her
of,
transcript
has a
nor heard nor even
saw
police
led the
so she
the
judge’s
The trial
as-
impaired.
gravely
is
(2)
improbable.
That is not
trailer.
the
of Alvarado-Rivera’s statement
sessment
a
the scale
she used
She said
unreliability
principle.
illustrates the
(3) She
improbable.
That is not
bracelet.
credibility judgment
is at
impaired
anof
drug cus-
only
the
informant was
said the
course,
heart,
process
the due
of
of
of,
was
informant
knew but the
she
tomer
judgments.
such
problem with
drive
would
certain
The Due Process Problem7
surprising
might
That
be
the sale.
car to
by the
problem raised
kind
The second
drug
how the
something about
if we knew
credibility judgment we have
impaired
But we
came about.
informant
sale
deprivation
here is an unconstitutional
(4) Alvara-
judge.
did the trial
don’t. Nor
a
valve is
Because
process.
due
sold
her husband
said
do-Rivera
for those who meet
statutory entitlement
That is not
food.
that she sold
drugs, but
discretionary
a
conditions—not
the fact that
Nor does
improbable.
constitutes a lib-
safety valve
award —the
out
moved
sons
deprived
that cannot be
with-
erty interest
improb-
more
these assertions
any of
make
Const.,
U.S.
of law. See
process
out due
im-
become
the assertions
able. Nor do
also,
Cyr,
INS v. St.
e.g.,
5.
Amend.
See
rather than
together
taken
when
probable
289, 345-46,
121 S.Ct.
533 U.S.
by
one.6
(“We
(2001)
recognized
have
L.Ed.2d 347
liberty in-
process
of a due
the existence
short,
assessment
judge’s
the trial
parole pro-
statutory
when a
terest
State’s
statement —which
Alvarado-Rivera’s
be
prisoner
‘shall’
prescribe
cedures
letter
prosecutor’s
from the
knew
satisfied.”)
are
if certain conditions
only paroled
summarizing the statement —is
Allen, 482 U.S.
Pardons v.
(citing
unreasonable
principle,
unreliable
L.Ed.2d
370-371, 381,
107 S.Ct.
ap-
judge’s assessment
face. The
on its
(1987)
Inmates
and Greenholtz
by 303
unduly influenced
been
to have
pears
Complex,
& Correctional
Neb. Penal
hunch,
by evi-
unsupported
judge’s
govern-
incorporated the
report,
gotten
tence
which
money
gotten
from
any
I've
I’ve
report, as-
preliminary
objections
ment's
makes
sense
selling
None of it
food.
thirty,
level of
rather
signed a base offense
were moved
way
of these items
some
Alvarado-Rivera's
thirty-six,
than
because
you
points
weren't
it
to me that
All of
sons.
Additionally,
report
recom-
minor role.
substantially truthful.
for Alvarado-
reduction
a two-level
mended
role,
reduc-
three-level
minor
Rivera’s
a mistake?
possible that I've made
it
Is
responsibility.
acceptance of
tion for
Yes.
my responsibility.
then it's
But
preserved the denial
7. While defendants
at 37-38.
Tr.
Sent.
review, neither defendant
safety valve
argument. The Due
a Due
has made
Process
being probable, Alvarado-Riv-
Apart
the rec-
the face of
appears on
Process issue
entirely
with
is
consistent
statement
era's
however,
ord,
precluded from
we are not
played a minor
she
was that
evidence—which
Indeed,
addressing it.
presen-
final
the crime.
role in
*10
1, 12,
2100,
U.S.
99 S.Ct.
What
is due
a sentencing
when
judge’s credibility findings and to make his
judge
a safety
makes
credibility
find-
own independent credibility findings with-
ing?
Supreme
Court
given
has
us
out seeing and hearing the statements
Raddatz,
strong guidance.
In
447 U.S.
684,
himself. See id. at
by liberty protect in order due
was mandatory safety created
interest
valve.9
Conclusion countenances majority opinion traditional from the departure
dramatic from ba- judgments and credibility
idea of in deter- process of due requirements
sic I dissent. Thus
mining facts. America, STATES
UNITED
Appellee, Appellant. GOLLHOFER,
Douglas M. 04-2363.
No. Appeals, Court Circuit.
Eighth 17, 2005. March
Submitted:
Filed: June under guidelines, rather than under specifically stated sentencing judge 9. The mandatory sentence. minimum could sentence Alvarado-Rivera wished he notes to record wire sentencing. fenses before See United transfers to Mexico over a two month peri- v. Madrigal, States $99,000. od the summer totaling of 2002 Moya-Alvarado, Gilberto appel- one of There are statutory requirements five sons, lants’ lived the next apart- door eligibility, and it is undis- ment, and he consented to the search of it puted that Alvarado-Rivera Moya- and an storage (1) associated locker. Found Vega met the first four: did not in the grams locker were 281.5 of metham- have more than history one criminal point; a bracelet. digital used the scale (2) possess or not use violence they did (3) offense; told Alvarado-Rivera that with the in connection firearm or seri- in death it not recom- not result this would offense did based on (4) was neither bodily injury; valve. of the It application ous mend leader, manager, organizer, an to be again, found but she offered to interview engaged or to have of others supervisor declined. enterprise. continuing criminal in a hour sen- During Alvarado-Rivera’s 3553(f)(l)-(4). wheth- At issue is U.S.C. indicat- tencing hearing, the requirement fifth they satisfied er to sentence her prefer that he would ed requires which minimum statutory below sentencing than the time not later